Case: 19-40144      Document: 00515553422       Page: 1    Date Filed: 09/04/2020




         United States Court of Appeals
              for the Fifth Circuit                                United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                  September 4, 2020
                                No. 19-40144
                                                                     Lyle W. Cayce
                                                                          Clerk

 Kerry Max Cook,

                                          Plaintiff—Appellee Cross-Appellant,

                                    versus

 City of Tyler, Texas; Eddie Clark; Eric Liptak;
 Robert Bond; Gerald Hayden; Nelson Downing;
 Fred Mayo; Kenneth Findley; Ronald Scott,

                                     Defendants—Appellants Cross-Appellees,

 Smith County, Texas; Robert Wickham; J. B. Smith,

                                                Defendants—Cross-Appellees.



                 Appeals from the United States District Court
                       for the Eastern District of Texas
                            USDC No. 6:17-CV-333


 Before Davis, Jones, and Willett, Circuit Judges.
 Per Curiam:
       This appeal and cross-appeal stem from a judgment dismissing
 Plaintiff Kerry Cook’s 42 U.S.C. § 1983 claims unless and until Cook
 satisfies the conditions of Heck v. Humphrey, 

(1986). In an
Case: 19-40144        Document: 00515553422              Page: 2      Date Filed: 09/04/2020




                                       No. 19-40144


 unusual turn of events, Defendants appeal a district court’s order that
 preceded the district court’s dismissal and denied, in part, their motions for
 summary judgment. Even more unusual—these Defendants sought the
 dismissal from which they now appeal. Appellee Cook contends that the
 district court did not issue a final decision, and therefore this court lacks
 subject-matter jurisdiction. We agree with Cook and DISMISS the appeal. 1
         Plaintiff filed this § 1983 claim to recover damages suffered from a
 series of alleged wrongful prosecutions, convictions, and imprisonment. But
 because Cook’s conviction has yet to be formally terminated in his favor, his
 causes of action concerning serious official misconduct have not yet accrued
 and will not begin to accrue until the Texas Court of Criminal Appeals
 (“TCCA”) vacates his conviction and the State dismisses the indictment
 against him. 2 

–90. Accordingly, the district court
 dismissed Cook’s suit using the following language: “the above-styled civil
 action is DISMISSED WITH PREJUDICE to the claims being asserted again
 until the Heck conditions are met, per 

.” As relevant
 here, our jurisdiction under 28 U.S.C. § 1291 extends only to “final
 decisions” of the district courts. The first question we must answer is
 whether the district court’s order dismissed the case with or without
 prejudice.
         In Johnson v. McElveen, we explained that this kind of dismissal
 “do[es] not preclude a later claim meeting the preconditions for suit.”
 

, 424 (5th Cir. 1996). That is, a Heck dismissal is a dismissal
 without prejudice. See, e.g., Clarke v. Stalder, 

, 191 (5th Cir.


         1
         Dismissing this appeal necessarily disposes of the issues raised by the
 Defendants in their opening brief.
         2
          Our holding is on narrow, jurisdictional grounds only and should not be
 construed as ruling on the statute of limitations or other issues raised by the Appellants.



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                                  No. 19-40144


 1998) (en banc).     In Johnson, we “modified” a district court’s order
 dismissing the case with prejudice “to be without 

. In doing so, we explained that “[a] preferred order of dismissal would
 read: Plaintiffs claims are dismissed with prejudice to their being asserted
 again until the Heck conditions are met.”

nearly
 verbatim in the district court’s order. Following these authorities, this court
 has repeatedly modified orders dismissing with prejudice cases that implicate
 a plaintiff’s conviction to become dismissals without prejudice using
 Johnson’s preferred language. See, e.g., DeLeon v. City of Corpus Christi,
 

, 657 (5th Cir. 2007). District courts have likewise employed
 Johnson-style dismissals to non-prejudicially dispose of cases. See, e.g., Moore
 v. Fite, 

, at *4 (E.D. Tex. Jan. 6, 2012). Johnson’s language
 suffices because it offers the caveat that plaintiffs may reassert their claims
 upon satisfying the Heck conditions but may not otherwise develop the claims
 “until” those conditions are met. The caveat qualifies the finality of the
 dismissal. Understanding this point, the district court acknowledged that its
 order “does not prevent Cook from bringing these claims once the ‘Heck
 conditions are met.’”
        We next consider whether the dismissal constitutes a final decision
 and conclude that it does not. “For purposes of Section 1291 a decision is
 final only if it ‘ends the litigation on the merits and leaves nothing for the
 court to do but execute the judgment.’” Sealed Appellant 1 v. Sealed Appellee,
 

, 278 (5th Cir. 2000) citing Cunningham v. Hamilton County,
 

, 

, 1920 (1999). Courts have held that certain
 dismissals without prejudice on the basis of conditions that can be corrected
 are not final. See e.g., Vargo v. Stumacher, 

(2d Cir. 1997) (“It is
 well settled in this Circuit that an order dismissing a complaint with leave to
 replead is not a final order within the meaning of 28 U.S.C. § 1291.”);
 Gacho v. Butler, 

, 735-36 (7th Cir. 2015) (holding that a dismissal


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                                   No. 19-40144


 without prejudice that “expressly left the door open to reviving the federal
 case when the state proceedings concluded” was “nonfinal and thus not
 appealable under § 1291 because it explicitly contemplates the court’s
 continuing involvement in the case”)(internal citations omitted).          The
 Johnson dismissal here is of that sort.
        Distinguishable from such cases are Heck dismissals that have been
 deemed final and appealable because the issue was whether, in fact, the
 plaintiff’s pleadings implicated Heck. See, e.g., Young v. Nickols, 

 (4th Cir. 2005). In Young, the plaintiff had not challenged his underlying
 revocation of probation, and the district court dismissed his claim based on
 Heck. The court of appeals found finality, however, to decide the question
 whether “Heck requires a state prisoner to have his criminal judgment or
 sentence set aside before he is allowed to bring a Section 1983 action seeking
 damages . . . for illegal extradition.”

Other Heck dismissals are
 considered final because the appeal seeks review of the threshold question
 whether Heck even applies. DeLeon is one such example, in which this court
 was asked to determine “whether a deferred adjudication in Texas is a
 ‘sentence or conviction’ for the purposes of 

.
        No uncertainty plagues the dismissal here, which the defendants
 themselves predicated on Heck. The district court noted that Cook is
 awaiting vacatur of his conviction by the TCCA and stated that Cook was
 free to bring his claims once the Heck conditions are met. That is, litigation
 on the merits is not over because Cook expects to satisfy the Heck conditions
 soon and may resubmit his claims thereafter. Because the dismissal of
 plaintiff’s claims does not prevent him from re-filing the same or similar
 claims at a later date, the district court’s judgment was not a final decision.
 We lack jurisdiction to hear the appeal or cross-appeal. DISMISSED.




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